Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984)

8/17/2019 Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984)

1/36

466 U.S. 789

104 S.Ct. 2118

80 L.Ed.2d 772

MEMBERS OF the CITY COUNCIL OF the CITY OF LOS

ANGELES et al.v.

TAXPAYERS FOR VINCENT, et al.

No. 82-975.

Supreme Court of United States

Argued Oct. 12, 1983.

Decided May 15, 1984.

Syllabus

Section 28.04 of the Los Angeles Municipal Code prohibits the posting of

signs on public property. Appellee Taxpayers for Vincent, a group of

supporters of a candidate for election to the Los Angeles City Council,

entered into a contract with appellee Candidates' Outdoor Graphics

Service (COGS) to fabricate and post signs with the candidate's name on

them. COGS produced cardboard signs and attached them to utility pole

crosswires at various locations. Acting under § 28.04, city employees

routinely removed all posters (including the COGS signs) attached to

utility poles and similar objects covered by the ordinance. Appellees then

filed suit in Federal District Court against appellants, the city and various

city officials (hereafter City), alleging that § 28.04 abridged appellees'freedom of speech within the meaning of the First Amendment, and

seeking damages and injunctive relief. The District Court entered findings

of fact, concluded that § 28.04 was constitutional, and granted the City's

motion for summary judgment. The Court of Appeals reversed, reasoning

that the ordinance was presumptively unconstitutional because significant

First Amendment interests were involved, and that the City had not

justified its total ban on all signs on the basis of its asserted interests in

preventing visual clutter, minimizing traffic hazards, and preventinginterference with the intended use of public property.

Held:


2/36

1. The "overbreadth" doctrine is not applicable here. There is nothing in

the record to indicate that § 28.04 will have any different impact on any

third parties' interests in free speech than it has on appellees' interests, and

appellees have failed to identify any significant difference between their

claim that § 28.04 is invalid on overbreadth grounds and their claim that it

is unconstitutional when applied to their signs during a political campaign.

Thus, it is inappropriate to entertain an overbreadth challenge to § 28.04.Pp. 796-803.

2. Section 28.04 is not unconstitutional as applied to appellees' expressive

activity. Pp. 803-817.

(a) The general principle that the First Amendment forbids the

government to regulate speech in ways that favor some viewpoints or

ideas at the expense of others is not applicable here. Section 28.04's text is

neutral—indeed it is silent—concerning any speaker's point of view, and

the District Court's findings indicate that it has been applied to appellees

and others in an evenhanded manner. It is within the City's constitutional

power to attempt to improve its appearance, and this interest is basically

unrelated to the suppression of ideas. Cf. United States v. O'Brien, 391

U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672. Pp. 803-805.

(b) Municipalities have a weighty, essentially esthetic interest in

proscribing intrusive and unpleasant formats for expression. The problemaddressed by § 28.04—the visual assault on the citizens of Los Angeles

presented by an accumulation of signs posted on public property—

constitutes a significant substantive evil within the City's power to

prohibit. Metromedia, Inc. v. San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69

L.Ed.2d 800. Pp. 805-807.

(c) Section 28.04 curtails no more speech than is necessary to accomplish

its purpose of eliminating visual clutter. By banning posted signs, the Citydid no more than eliminate the exact source of the evil it sought to

remedy. The rationale of Schneider v. State, 308 U.S. 147, 60 S.Ct. 146,

84 L.Ed. 155 which held that ordinances that absolutely prohibited

handbilling on public streets and sidewalks were invalid, is inapposite in

the context of the instant case. Pp. 808-810.

(d) The validity of the City's esthetic interest in the elimination of signs on

public property is not compromised by failing to extend the ban to private property. The private citizen's interest in controlling the use of his own

property justifies the disparate treatment, and there is no predicate in the

District Court's findings for the conclusion that the prohibition against the


3/36

posting of appellees' signs fails to advance the City's esthetic interest. Pp.

810-812.

(e) While a restriction on expressive activity may be invalid if the

remaining modes of communication are inadequate, § 28.04 does not

affect any individual's freedom to exercise the right to speak and to

distribute literature in the same place where the posting of signs on public property is prohibited. The District Court's findings indicate that there are

ample alternative modes of communication in Los Angeles. P. 812.

(f) There is no merit in appellees' suggestion that the property covered by

§ 28.04 either is itself a "public forum" subject to special First

Amendment protection, or at least should be treated in the same respect as

the "public forum" in which the property is located. The mere fact that

government property can be used as a vehicle for communication—such as

the use of lampposts as signposts—does not mean that the Constitution

requires such use to be permitted. Public property which is not by tradition

or designation a forum for public communication may be reserved by the

government for its intended purposes, communicative or otherwise, if the

regulation on speech (as here) is reasonable and not an effort to suppress

expression merely because public officials oppose the speaker's view. Pp.

813-815.

(g) Although plausible policy arguments might well be made in support of appellees' suggestion that the City could have written an ordinance that

would have had a less severe effect on expressive activity like theirs—

such as by providing an exception for political campaign signs—it does

not follow that such an exception is constitutionally mandated, nor is it

clear that some of the suggested exceptions would even be constitutionally

permissible. To create an exception for appellees' political speech and not

other types of protected speech might create a risk of engaging in

constitutionally forbidden content discrimination. The City may properlydecide that the esthetic interest in avoiding visual clutter justifies a

removal of all signs creating or increasing that clutter. Pp. 815-817.

682 F.2d 847, reversed and remanded.

Anthony Saul Alperin, Los Angeles, Cal., for appellants.

Wayne S. Canterbury, San Francisco, Cal., for appellees.

Justice STEVENS delivered the opinion of the Court.


4/36

1 Section 28.04 of the Los Angeles Municipal Code prohibits the posting of signs

on public property.1 The question presented is whether that prohibition abridges

appellees' freedom of speech within the meaning of the First Amendment.2

2 In March 1979, Roland Vincent was a candidate for election to the Los Angeles

City Council. A group of his supporters known as Taxpayers for Vincent

(Taxpayers) entered into a contract with a political sign service companyknown as Candidates' Outdoor Graphics Service (COGS) to fabricate and post

signs with Vincent's name on them. COGS produced 15 by 44-inch cardboard

signs and attached them to utility poles at various locations by draping them

over crosswires which support the poles and stapling the cardboard together at

the bottom. The signs' message was: "Roland Vincent—City Council."

3 Acting under the authority of § 28.04 of the Municipal Code, employees of the

city's Bureau of Street Maintenance routinely removed all posters attached to

utility poles and similar objects covered by the ordinance, including the COGS

signs. The weekly sign removal report covering the period March 1-March 7,

1979, indicated that among the 1,207 signs removed from public property

during that week, 48 were identified as "Roland Vincent" signs. Most of the

other signs identified in that report were apparently commercial in character.3

4 On March 12, 1979, Taxpayers and COGS filed this action in the United States

District Court for the Central District of California, naming the city, the

Director of the Bureau of Street Maintenance, and members of the City Council

as defendants.4 They sought an injunction against enforcement of the ordinance

as well as compensatory and punitive damages. After engaging in discovery,

the parties filed cross-motions for summary judgment on the issue of liability.

The District Court entered findings of fact, concluded that the ordinance was

constitutional, and granted the City's motion.

5 The District Court's findings do not purport to resolve any disputed issue of

fact; instead, they summarize material in the record that appears to be

uncontroverted. The findings recite that the principal responsibility for locating

and removing signs and handbills posted in violation § 28.04 is assigned to the

Street Use Inspection Division of the city's Bureau of Street Maintenance. The

court found that both political and nonpolitical signs are illegally posted and

that they are removed "without regard to their content."5

6 After explaining the purposes for which the City's zoning code had been

enacted, and noting that the prohibition in § 28.04 furthered those purposes, the

District Court found that the large number of illegally posted signs "constitute a


5/36

clutter and visual blight."6 With specific reference to the posting of the COGS

signs on utility pole crosswires, the District Court found that such posting

"would add somewhat to the blight and inevitably would encourage greatly

increased posting in other unauthorized and unsightly places. . . ."7

7 In addition, the District Court found that placing signs on utility poles creates a

potential safety hazard, and that other violations of § 28.04 "block views andotherwise cause traffic hazards."8 Finally, the District Court concluded that the

sign prohibition does not prevent taxpayers or COGS "from exercising their

free speech rights on the public streets and in other public places; they remain

free to picket and parade, to distribute handbills, to carry signs and to post their

signs and handbills on their automobiles and on private property with the

permission of the owners thereof."9

8 In its conclusions of law the District Court characterized the esthetic and

economic interests in improving the beauty of the City "by eliminating clutter

and visual blight" as "legitimate and compelling."10 Those interests, together

with the interest in protecting the safety of workmen who must scale utility

poles and the interest in eliminating traffic hazards, adequately supported the

sign prohibition as a reasonable regulation affecting the time, place, and

manner of expression.

9 The Court of Appeals did not question any of the District Court's findings of

fact, but it rejected some of its conclusions of law. The Court of Appeals

reasoned that the ordinance was presumptively unconstitutional because

significant First Amendment interests were involved. It noted that the City had

advanced three separate justifications for the ordinance, but concluded that

none of them was sufficient. The Court of Appeals held that the City had failed

to make a sufficient showing that its asserted interests in esthetics and

preventing visual clutter were substantial because it had not offered to

demonstrate that the City was engaged in a comprehensive effort to remove

other contributions to an unattractive environment in commercial and industrial

areas. The City's interest in minimizing traffic hazards was rejected because it

was readily apparent that no substantial traffic problems would result from

permitting the posting of certain kinds of signs on many of the publicly owned

objects covered by the ordinance. Finally, while acknowledging that a flat

prohibition against signs on certain objects such as fire hydrants and traffic

signals would be a permissible method of preventing interference with the

intended use of public property, and that regulation of the size, design, andconstruction of posters, or of the method of removing them, might be

reasonable, the Court of Appeals concluded that the City had not justified its

total ban.11


6/36

10 In its appeal to this Court the City challenges the Court of Appeals' holding that

§ 28.04 is unconstitutional on its face. Taxpayers and COGS defend that

holding and also contend that the ordinance is unconstitutional as applied to

their posting of political campaign signs on the crossarms of utility poles. There

are two quite different ways in which a statute or ordinance may be considered

invalid "on its face"—either because it is unconstitutional in every conceivable

application, or because it seeks to prohibit such a broad range of protectedconduct that it is unconstitutionally "overbroad." We shall analyze the "facial"

challenges to the ordinance, and then address its specific application to

appellees.

11 * The seminal cases in which the Court held state legislation unconstitutional

"on its face" did not involve any departure from the general rule that a litigant

only has standing to vindicate his own constitutional rights. In Stromberg v.

California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931),12 and Lovell v.Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938),13 the statutes were

unconstitutional as applied to the defendants' conduct, but they were also

unconstitutional on their face because it was apparent that any attempt to

enforce such legislation would create an unacceptable risk of the suppression of

ideas.14 In cases of this character a holding of facial invalidity expresses the

conclusion that the statute could never be applied in a valid manner. Such

holdings15 invalidated entire statutes, but did not create any exception from the

general rule that constitutional adjudication requires a review of the applicationof a statute to the conduct of the party before the Court.

12 Subsequently, however, the Court did recognize an exception to this general

rule for laws that are written so broadly that they may inhibit the

constitutionally protected speech of third parties. This "overbreadth" doctrine

has its source in Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed.

1093 (1940). In that case the Court concluded that the very existence of some

broadly written statutes may have such a deterrent effect on free expression thatthey should be subject to challenge even by a party whose own conduct may be

unprotected.16 The Court has repeatedly held that such a statute may be

challenged on its face even though a more narrowly drawn statute would be

valid as applied to the party in the case before it.17 This exception from the

general rule is predicated on "a judicial prediction or assumption that the

statute's very existence may cause others not before the court to refrain from

constitutionally protected speech or expression." Broadrick v. Oklahoma, 413

U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973).

13 In the development of the overbreadth doctrine the Court has been sensitive to

the risk that the doctrine itself might sweep so broadly that the exception to


7/36

ordinary standing requirements would swallow the general rule. In order to

decide whether the overbreadth exception is applicable in a particular case, we

have weighed the likelihood that the statute's very existence will inhibit free

expression.

14 "[T]here comes a point where that effect—at best a prediction cannot, with

confidence, justify invalidating a statute on its face and so prohibiting a Statefrom enforcing the statute against conduct that is admittedly within its power to

proscribe. To put the matter another way, particularly where conduct and not

merely speech is involved, we believe that the overbreadth of a statute must not

only be real, but substantial as well, judged in relation to the statute's plainly

legitimate sweep." Broadrick v. Oklahoma, 413 U.S., at 615, 93 S.Ct., at 2917-

2918 (citation omitted).18

15 The concept of "substantial overbreadth" is not readily reduced to an exact

definition. It is clear, however, that the mere fact that one can conceive of some

impermissible applications of a statute is not sufficient to render it susceptible

to an overbreadth challenge.19 On the contrary, the requirement of substantial

overbreadth stems from the underlying justification for the overbreadth

exception itself—the interest in preventing an invalid statute from inhibiting the

speech of third parties who are not before the Court.

16 "The requirement of substantial overbreadth is directly derived from the

purpose and nature of the doctrine. While a sweeping statute, or one incapable

of limitation, has the potential to repeatedly chill the exercise of expressive

activity by many individuals, the extent of deterrence of protected speech can

be expected to decrease with the declining reach of the regulation." New York

v. Ferber, 458 U.S. 747, 772, 102 S.Ct. 3348, 3362, 73 L.Ed.2d 1113 (1982)

(footnote omitted).

17 In short, there must be a realistic danger that the statute itself will significantly

compromise recognized First Amendment protections of parties not before the

Court for it to be facially challenged on overbreadth grounds. See Erznoznik v.

City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125

(1975). See also Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 462, n. 20, 98

S.Ct. 1912, 1922 n. 20, 56 L.Ed.2d 444 (1978); Parker v. Levy, 417 U.S. 733,

760-761, 94 S.Ct. 2547, 2563-2564, 41 L.Ed.2d 439 (1974).

18 The Court of Appeals concluded that the ordinance was vulnerable to an

overbreadth challenge because it was an "overinclusive" response to traffic

concerns and not the "least drastic means" of preventing interference with the


8/36

normal use of public property. This conclusion rested on an evaluation of the

assumed effect of the ordinance on third parties, rather than on any specific

consideration of the impact of the ordinance on the parties before the court.

This is not, however, an appropriate case to entertain a facial challenge based

on overbreadth. For we have found nothing in the record to indicate that the

ordinance will have any different impact on any third parties' interests in free

speech than it has on Taxpayers and COGS.

19 Taxpayers and COGS apparently would agree that the prohibition against

posting signs on most of the publicly owned objects mentioned in the ordinance

is perfectly reasonable. Thus, they do not dispute the City's power to proscribe

the attachment of any handbill or sign to any sidewalk, crosswalk, curb,

lamppost, hydrant, or lifesaving equipment.20 Their position with respect to

utility poles is not entirely clear, but they do contend that it is unconstitutional

to prohibit the attachment of their cardboard signs to the horizontal crosswiressupporting utility poles during a political campaign. They have, in short, failed

to identify any significant difference between their claim that the ordinance is

invalid on overbreadth grounds and their claim that it is unconstitutional when

applied to their political signs. Specifically, Taxpayers and COGS have not

attempted to demonstrate that the ordinance applies to any conduct more likely

to be protected by the First Amendment than their own crosswires signs.

Indeed, the record suggests that many of the signs posted in violation of the

ordinance are posted in such a way that they may create safety or traffic problems that COGS has tried to avoid. Accordingly, on this record it appears

that if the ordinance may be validly applied to COGS, it can be validly applied

to most if not all of the signs of parties not before the Court. Appellees have

simply failed to demonstrate a realistic danger that the ordinance will

significantly compromise recognized First Amendment protections of

individuals not before the Court. It would therefore be inappropriate in this case

to entertain an overbreadth challenge to the ordinance.

20 Taxpayers and COGS do argue generally that the City's interest in eliminating

visual blight is not sufficiently weighty to justify an abridgment of speech. If

that were the only interest the ordinance advanced, then this argument would be

analogous to the facial challenges involved in cases like Stromberg and Lovell.

But as previously observed, appellees acknowledge that the ordinance serves

safety interests in many of its applications, and hence do not argue that the

ordinance can never be validly applied. Instead, appellees argue that they have

placed their signs in locations where only the esthetic interest is implicated. Inaddition, they argue that they have developed an expertise in not "placing signs

in offensive manners which will alienate its own clientele or their

constituencies,"21 and emphasize the special value of free communication


9/36

II

during political campaigns, see Metromedia, Inc. v. San Diego, 453 U.S. 490,

555, 101 S.Ct., at 2917 (1981) (STEVENS, J., dissenting in part); id., at 550,

101 S.Ct., at 2914 (REHNQUIST, J., dissenting). In light of these arguments,

appellees' attack on the ordinance is basically a challenge to the ordinance as

applied to their activities. We therefore limit our analysis of the

constitutionality of the ordinance to the concrete case before us, and now turn

to the arguments that it is invalid as applied to the expressive activity of Taxpayers and COGS.22

21 The ordinance prohibits appellees from communicating with the public in a

certain manner, and presumably diminishes the total quantity of their

communication in the City.23 The application of the ordinance to appellees'

expressive activities surely raises the question whether the ordinance abridgestheir "freedom of speech" within the meaning of the First Amendment, and

appellees certainly have standing to challenge the application of the ordinance

to their own expressive activities. "But to say the ordinance presents a First

Amendment issue is not necessarily to say that it constitutes a First Amendment

violation." Metromedia, Inc. v. San Diego, 453 U.S., at 561, 101 S.Ct., at 2920,

69 L.Ed.2d 800 (BURGER, C.J., dissenting). It has been clear since this Court's

earliest decisions concerning the freedom of speech that the state may

sometimes curtail speech when necessary to advance a significant andlegitimate state interest. Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct.

247, 249, 63 L.Ed. 470 (1919).

22 As Stromberg and Lovell demonstrate, there are some purported interests—

such as a desire to suppress support for a minority party or an unpopular cause,

or to exclude the expression of certain points of view from the marketplace of

ideas—that are so plainly illegitimate that they would immediately invalidate

the rule. The general principle that has emerged from this line of cases is thatthe First Amendment forbids the government to regulate speech in ways that

favor some viewpoints or ideas at the expense of others. See Bolger v. Youngs

Drug Products Corp., 463 U.S. 60, 65, 72, 103 S.Ct. 2875, 2879, 2883, 77

L.Ed.2d 469 (1983); Consolidated Edison Co. v. Public Service Comm'n, 447

U.S. 530, 535-536, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319 (1980); Carey v.

Brown, 447 U.S. 455, 462-463, 100 S.Ct. 2286, 2291, 65 L.Ed.2d 263 (1980);

Young v. American Mini Theatres, Inc., 427 U.S. 50, 63-65, 67-68, 96 S.Ct.

2440, 2448-2450, 2451, 49 L.Ed.2d 310 (1976) (plurality opinion); PoliceDepartment of Chicago v. Mosley, 408 U.S. 92, 95-96, 92 S.Ct. 2286, 2289-

2290, 33 L.Ed.2d 212 (1972).


10/36

III

23 That general rule has no application to this case. For there is not even a hint of

bias or censorship in the City's enactment or enforcement of this ordinance.

There is no claim that the ordinance was designed to suppress certain ideas that

the City finds distasteful or that it has been applied to appellees because of the

views that they express. The text of the ordinance is neutral—indeed it is silent

—concerning any speaker's point of view, and the District Court's findings

indicate that it has been applied to appellees and others in an evenhanded

manner.

24 In United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672

(1968), the Court set forth the appropriate framework for reviewing a

viewpoint-neutral regulation of this kind: "[A] government regulation is

sufficiently justified if it is within the constitutional power of the Government;

if it furthers an important or substantial governmental interest; if the

governmental interest is unrelated to the suppression of free expression; and if

the incidental restriction on alleged First Amendment freedoms is no greater

than is essential to the furtherance of that interest." Id., at 377, 88 S.Ct., at

1679.

25 It is well settled that the state may legitimately exercise its police powers to

advance esthetic values. Thus, in Berman v. Parker, 348 U.S. 26, 32-33, 75

S.Ct. 98, 102-103, 99 L.Ed. 27 (1954), in referring to the power of thelegislature to remove blighted housing, this Court observed that such housing

may be "an ugly sore, a blight on the community which robs it of charm, which

makes it a place from which men turn." Ibid. We concluded: "The concept of

the public welfare is broad and inclusive. The values it represents are spiritual

as well as physical, aesthetic as well as monetary." Id., at 33, 75 S.Ct., at 102

(citation omitted). See also Penn Central Transportation Co. v. New York City,

438 U.S. 104, 129, 98 S.Ct. 2646, 2661, 57 L.Ed.2d 631 (1978); Village of

Belle Terre v. Boraas, 416 U.S. 1, 9, 94 S.Ct. 1536, 1541, 39 L.Ed.2d 797

(1974); Euclid v. Ambler Co., 272 U.S. 365, 387-388, 47 S.Ct. 114, 118, 71

L.Ed. 303 (1926); Welch v. Swasey, 214 U.S. 91, 108, 29 S.Ct. 567, 571, 53

L.Ed. 923 (1909).

26 In this case, taxpayers and COGS do not dispute that it is within the

constitutional power of the City to attempt to improve its appearance, or that

this interest is basically unrelated to the suppression of ideas. Therefore the

critical inquiries are whether that interest is sufficiently substantial to justify theeffect of the ordinance on appellees' expression, and whether that effect is no

greater than necessary to accomplish the City's purpose.


11/36

IV

27In Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949), the Court

rejected the notion that a city is powerless to protect its citizens from unwanted

exposure to certain methods of expression which may legitimately be deemed a

public nuisance. In upholding an ordinance that prohibited loud and raucous

sound trucks, the Court held that the State had a substantial interest in

protecting its citizens from unwelcome noise.24 In Lehman v. City of Shaker

Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974), the Court upheldthe city's prohibition of political advertising on its buses, stating that the city

was entitled to protect unwilling viewers against intrusive advertising that may

interfere with the city's goal of making its buses "rapid, convenient, pleasant,

and inexpensive," id., at 302-303, 94 S.Ct., at 2717 (plurality opinion). See also

id., at 307, 94 S.Ct., at 2719 (Douglas, J., concurring in judgment); Erznoznik

v. City of Jacksonville, 422 U.S., at 209, and n. 5, 95 S.Ct., at 2273 and n. 5.

These cases indicate that the municipalities have a weighty, essentially esthetic

interest in proscribing intrusive and unpleasant formats for expression.

28 Metromedia, Inc. v. San Diego, supra, dealt with San Diego's prohibition of

certain forms of outdoor billboards. There the Court considered the city's

interest in avoiding visual clutter, and seven Justices explicitly concluded that

this interest was sufficient to justify a prohibition of billboards, see id., at 507-

508, 510, 101 S.Ct., at 2892-2893, 2894 (opinion of WHITE, J., joined by

Stewart, MARSHALL, and POWELL, JJ.); id., at 552, 101 S.Ct., at 2915

(STEVENS, J., dissenting in part); id., at 559-561, 101 S.Ct., at 2919-2921(BURGER, C.J., dissenting); id., at 570, 101 S.Ct., at 2924-2925

(REHNQUIST, J., dissenting).25 Justice WHITE, writing for the plurality,

expressly concluded that the city's esthetic interests were sufficiently

substantial to provide an acceptable justification for a content-neutral

prohibition against the use of billboards; San Diego's interest in its appearance

was undoubtedly a substantial governmental goal. Id., at 507-508, 101 S.Ct., at

2892-2893.26

29 We reaffirm the conclusion of the majority in Metromedia. The problem

addressed by this ordinance—the visual assault on the citizens of Los Angeles

presented by an accumulation of signs posted on public property—constitutes a

significant substantive evil within the City's power to prohibit. "[T]he city's

interest in attempting to preserve [or improve] the quality of urban life is one

that must be accorded high respect." Young v. American Mini Theatres, Inc.,

427 U.S., at 71, 96 S.Ct., at 2453 (plurality opinion).

30 We turn to the question whether the scope of the restriction on appellees'


12/36

expressive activity is substantially broader than necessary to protect the City's

interest in eliminating visual clutter. The incidental restriction on expression

which results from the City's attempt to accomplish such a purpose is

considered justified as a reasonable regulation of the time, place, or manner of

expression if it is narrowly tailored to serve that interest. See, e.g., Heffron v.

International Society for Krishna Consciousness, Inc., 452 U.S. 640, 647-648,

101 S.Ct. 2559, 2563-2564, 69 L.Ed.2d 298 (1981); Schad v. Mount Ephraim,452 U.S. 61, 68-71, 101 S.Ct. 2176, 2182-2183, 68 L.Ed.2d 671 (1981); Carey

v. Brown, 447 U.S., at 470-471, 100 S.Ct., at 2295-2296, 65 L.Ed.2d 263

(1980); Grayned v. City of Rockford, 408 U.S. 104, 115-117, 92 S.Ct. 2294,

2302-2303, 33 L.Ed.2d 222 (1972); Police Department of Chicago v. Mosley,

408 U.S., at 98, 92 S.Ct., at 2291. The District Court found that the signs

prohibited by the ordinance do constitute visual clutter and blight. By banning

these signs, the City did no more than eliminate the exact source of the evil it

sought to remedy.27

The plurality wrote in Metromedia: "It is not speculative torecognize that billboards by their very nature, wherever located and however

constructed, can be perceived as an 'esthetic harm.' " 453 U.S., at 510, 101

S.Ct., at 2893-2894. The same is true of posted signs.

31 It is true that the esthetic interest in preventing the kind of litter that may result

from the distribution of leaflets on the public streets and sidewalks cannot

support a prophylactic prohibition against the citizen's exercise of that method

of expressing his views. In Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84L.Ed. 155 (1939), the Court held that ordinances that absolutely prohibited

handbilling on the streets were invalid. The Court explained that cities could

adequately protect the esthetic interest in avoiding litter without abridging

protected expression merely by penalizing those who actually litter. See id., at

162, 60 S.Ct., at 151. Taxpayers contend that their interest in supporting

Vincent's political campaign, which affords them a constitutional right to

distribute brochures and leaflets on the public streets of Los Angeles, provides

equal support for their asserted right to post temporary signs on objects adjacentto the streets and sidewalks. They argue that the mere fact that their temporary

signs "add somewhat" to the city's visual clutter is entitled to no more weight

than the temporary unsightliness of discarded handbills and the additional

street-cleaning burden that were insufficient to justify the ordinances reviewed

in Schneider.

32 The rationale of Schneider is inapposite in the context of the instant case.

There, individual citizens were actively exercising their right to communicatedirectly with potential recipients of their message. The conduct continued only

while the speakers or distributors remained on the scene. In this case, appellees

posted dozens of temporary signs throughout an area where they would remain


13/36

V

unattended until removed. As the Court expressly noted in Schneider, the First

Amendment does not "deprive a municipality of power to enact regulations

against throwing literature broadcast in the streets. Prohibition of such conduct

would not abridge the constitutional liberty since such activity bears no

necessary relationship to the freedom to speak, write, print or distribute

information or opinion." 308 U.S., at 160-161, 60 S.Ct., at 150. In short, there

is no constitutional impediment to "the punishment of those who actually throw papers on the streets." Id., at 162, 60 S.Ct., at 151. A distributor of leaflets has

no right simply to scatter his pamphlets in the air or to toss large quantities of

paper from the window of a tall building or a low flying airplane.

Characterizing such an activity as a separate means of communication does not

diminish the State's power to condemn it as a public nuisance. The right

recognized in Schneider is to tender the written material to the passerby who

may reject it or accept it, and who thereafter may keep it, dispose of it properly,

or incur the risk of punishment if he lets it fall to the ground. One who isrightfully on a street open to the public "carries with him there as elsewhere the

constitutional right to express his views in an orderly fashion. This right extends

to the communication of ideas by handbills and literature as well as by the

spoken word." Jamison v. Texas, 318 U.S. 413, 416, 63 S.Ct. 669, 672, 87

L.Ed. 869 (1943); see also Cox v. Louisiana, 379 U.S. 559, 578, 85 S.Ct. 476,

478, 13 L.Ed.2d 487 (1965) (Black, J., dissenting in part).

33 With respect to signs posted by appellees, however, it is the tangible medium of expressing the message that has the adverse impact on the appearance of the

landscape. In Schneider, an antilittering statute could have addressed the

substantive evil without prohibiting expressive activity, whereas application of

the prophylactic rule actually employed gratuitously infringed upon the right of

an individual to communicate directly with a willing listener. Here, the

substantive evil—visual blight—is not merely a possible by-product of the

activity, but is created by the medium of expression itself. In contrast to

Schneider, therefore, the application of the ordinance in this case responds precisely to the substantive problem which legitimately concerns the City. The

ordinance curtails no more speech than is necessary to accomplish its purpose.

34 The Court of Appeals accepted the argument that a prohibition against the use

of unattractive signs cannot be justified on esthetic grounds if it fails to apply to

all equally unattractive signs wherever they might be located. A comparableargument was categorically rejected in Metromedia. In that case it was argued

that the city could not simultaneously permit billboards to be used for onsite

advertising and also justify the prohibition against offsite advertising on


14/36

VI

esthetic grounds, since both types of advertising were equally unattractive. The

Court held, however, that the city could reasonably conclude that the esthetic

interest was outweighed by the countervailing interest in one kind of

advertising even though it was not outweighed by the other.28 So here, the

validity of the esthetic interest in the elimination of signs on public property is

not compromised by failing to extend the ban to private property. The private

citizen's interest in controlling the use of his own property justifies thedisparate treatment. Moreover, by not extending the ban to all locations, a

significant opportunity to communicate by means of temporary signs is

preserved, and private property owners' esthetic concerns will keep the posting

of signs on their property within reasonable bounds. Even if some visual blight

remains, a partial, content-neutral ban may nevertheless enhance the City's

appearance.

35 Furthermore, there is no finding that in any area where appellees seek to placesigns, there are already so many signs posted on adjacent private property that

the elimination of appellees' signs would have an inconsequential effect on the

esthetic values with which the City is concerned. There is simply no predicate

in the findings of the District Court for the conclusion that the prohibition

against the posting of appellees' signs fails to advance the City's esthetic

interest.

36 While the First Amendment does not guarantee the right to employ every

conceivable method of communication at all times and in all places, Heffron v.

International Society for Krishna Consciousness, Inc., 452 U.S., at 647, 101

S.Ct., at 2563-2564, a restriction on expressive activity may be invalid if the

remaining modes of communication are inadequate. See, e.g., United States v.

Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 1707, 75 L.Ed.2d 736 (1983);

Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S., at654-655, 101 S.Ct., at 2567-2568; Consolidated Edison Co. v. Public Service

Comm'n, 447 U.S., at 535, 100 S.Ct., at 2332; Linmark Associates, Inc. v.

Willingboro, 431 U.S. 85, 93, 97 S.Ct. 1614, 1618, 52 L.Ed.2d 155 (1977). The

Los Angeles ordinance does not affect any individual's freedom to exercise the

right to speak and to distribute literature in the same place where the posting of

signs on public property is prohibited.29 To the extent that the posting of signs

on public property has advantages over these forms of expression, see, e.g.,

Talley v. California, 362 U.S. 60, 64-65, 80 S.Ct. 536, 538-539, 4 L.Ed.2d 559(1960), there is no reason to believe that these same advantages cannot be

obtained through other means. To the contrary, the findings of the District

Court indicate that there are ample alternative modes of communication in Los


15/36

VII

Angeles. Notwithstanding appellees' general assertions in their brief concerning

the utility of political posters, nothing in the findings indicates that the posting

of political posters on public property is a uniquely valuable or important mode

of communication, or that appellees' ability to communicate effectively is

threatened by ever-increasing restrictions on expression.30

37 Appellees suggest that the public property covered by the ordinance either is

itself a "public forum" for First Amendment purposes, or at least should be

treated in the same respect as the "public forum" in which the property is

located. "Traditional public forum property occupies a special position in terms

of First Amendment protection," United States v. Grace, 461 U.S., at 180, 103

S.Ct., at 1708, and appellees maintain that their sign-posting activities are

entitled to this protection.

38 In Hague v. CIO, 307 U.S. 496, 515-516, 59 S.Ct. 954, 964, 83 L.Ed. 1423

(1939) (opinion of Roberts, J.), it was recognized:

39 "Wherever the title of streets and parks may rest, they have immemorially been

held in trust for the use of the public, and, time out of mind, have been used for

purposes of assembly, communicating thoughts between citizens, and

discussing public questions. Such use of the streets and public places has, fromancient times, been a part of the privileges, immunities, rights, and liberties of

citizens. The privilege of a citizen of the United States to use the streets and

parks for communication of views on national questions may be regulated in

the interest of all; it is not absolute, but relative, and must be exercised in

subordination to the general comfort and convenience, and in consonance with

peace and good order; but it must not, in the guise of regulation, be abridged or

denied."

40 See also Grayned v. City of Rockford, 408 U.S., at 115, 92 S.Ct., at 2302;

Shuttlesworth v. City of Birmingham, 394 U.S. 147, 152, 89 S.Ct. 935, 939, 22

L.Ed.2d 162 (1969); Kunz v. New York, 340 U.S. 290, 293, 71 S.Ct. 312, 314,

95 L.Ed. 280 (1951); Schneider v. State, 308 U.S., at 163, 60 S.Ct., at 152.

41 Appellees' reliance on the public forum doctrine is misplaced. They fail to

demonstrate the existence of a traditional right of access respecting such items

as utility poles for purposes of their communication comparable to that

recognized for public streets and parks, and it is clear that "the First

Amendment does not guarantee access to government property simply because


16/36

VIII

it is owned or controlled by the government." United States Postal Service v.

Greenburgh Civic Assns., 453 U.S. 114, 129, 101 S.Ct. 2676, 2685, 69 L.Ed.2d

517 (1981). Rather, the "existence of a right of access to public property and

the standard by which limitations upon such a right must be evaluated differ

depending on the character of the property at issue." Perry Education Assn. v.

Perry Local Educators' Assn., 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d

794 (1983).

42 Lampposts can of course be used as signposts, but the mere fact that

government property can be used as a vehicle for communication does not mean

that the Constitution requires such uses to be permitted. Cf. United States

Postal Service v. Greenburgh Civic Assn., 453 U.S., at 131, 101 S.Ct. 2676,

2686, 69 L.Ed.2d 517.31 Public property which is not by tradition or

designation a forum for public communication may be reserved by the State

"for its intended purposes, communicative or otherwise, as long as theregulation on speech is reasonable and not an effort to suppress expression

merely because public officials oppose the speaker's view." Perry Education

Assn. v. Perry Local Educators' Ass'n, 460 U.S., at 46, 103 S.Ct., at 955. Given

our analysis of the legitimate interest served by the ordinance, its viewpoint

neutrality, and the availability of alternative channels of communication, the

ordinance is certainly constitutional as applied to appellees under this

standard.32

43 Finally, Taxpayers and COGS argue that Los Angeles could have written an

ordinance that would have had a less severe effect on expressive activity such

as theirs, by permitting the posting of any kind of sign at any time on some

types of public property, or by making a variety of other more specific

exceptions to the ordinance: for signs carrying certain types of messages (such

as political campaign signs), for signs posted during specific time periods(perhaps during political campaigns), for particular locations (perhaps for areas

already cluttered by an excessive number of signs on adjacent private property),

or for signs meeting design specifications (such as size or color). Plausible

public policy arguments might well be made in support of any such exception,

but it by no means follows that it is therefore constitutionally mandated, cf.

Singer v. United States, 380 U.S. 24, 34-35, 85 S.Ct. 783, 789-790, 13 L.Ed.2d

630 (1965), nor is it clear that some of the suggested exceptions would even be

constitutionally permissible. For example, even though political speech isentitled to the fullest possible measure of constitutional protection, there are a

host of other communications that command the same respect. An assertion

that "Jesus Saves," that "Abortion is Murder," that every woman has the "Right


17/36

to Choose," or that "Alcohol Kills," may have a claim to a constitutional

exemption from the ordinance that is just as strong as "Roland Vincent—City

Council." See Abood v. Detroit Board of Education, 431 U.S. 209, 231-232, 97

S.Ct. 1782, 1797-1798, 52 L.Ed.2d 261 (1977).33 To create an exception for

appellees' political speech and not these other types of speech might create a

risk of engaging in constitutionally forbidden content discrimination. See, e.g.,

Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980); PoliceDepartment of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212

(1972). Moreover, the volume of permissible postings under such a mandated

exemption might so limit the ordinance's effect as to defeat its aim of

combating visual blight.

44 Any constitutionally mandated exception to the City's total prohibition against

temporary signs on public property would necessarily rest on a judicial

determination that the City's traffic control and safety interests had little or noapplicability within the excepted category, and that the City's interests in

esthetics are not sufficiently important to justify the prohibition in that

category. But the findings of the District Court provide no basis for questioning

the substantiality of the esthetic interest at stake, or for believing that a

uniquely important form of communication has been abridged for the categories

of expression engaged in by Taxpayers and COGS. Therefore, we accept the

City's position that it may decide that the esthetic interest in avoiding "visual

clutter" justifies a removal of signs creating or increasing that clutter. Thefindings of the District Court that COGS signs add to the problems addressed

by the ordinance and, if permitted to remain, would encourage others to post

additional signs, are sufficient to justify application of the ordinance to these

appellees.

45 As recognized in Metromedia, if the city has a sufficient basis for believing that

billboards are traffic hazards and are unattractive, "then obviously the most

direct and perhaps the only effective approach to solving the problems theycreate is to prohibit them." 453 U.S., at 508, 101 S.Ct., at 2893. As is true of

billboards, the esthetic interests that are implicated by temporary signs are

presumptively at work in all parts of the city, including those where appellees

posted their signs, and there is no basis in the record in this case upon which to

rebut that presumption. These interests are both psychological and economic.

The character of the environment affects the quality of life and the value of

property in both residential and commercial areas. We hold that on this record

these interests are sufficiently substantial to justify this content-neutral,impartially administered prohibition against the posting of appellees' temporary

signs on public property and that such an application of the ordinance does not

create an unacceptable threat to the "profound national commitment to the


18/36

principle that debate on public issues should be uninhibited, robust, and wide-

open." New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720-

721, 11 L.Ed.2d 686 (1964).34

46 The judgment of the Court of Appeals is reversed, and the case is remanded to

that Court.

47 It is so ordered.

48 Justice BRENNAN, with whom Justice MARSHALL and Justice

BLACKMUN join, dissenting.

49 The plurality opinion in Metromedia, Inc. v. San Diego, 453 U.S. 490, 101

S.Ct. 2882, 69 L.Ed.2d 800 (1981), concluded that the City of San Diegocould, consistently with the First Amendment, restrict the commercial use of

billboards in order to "preserve and improve the appearance of the City." Id., at

493, 101 S.Ct., at 2885. Today, the Court sustains the constitutionality of Los

Angeles' similarly motivated ban on the posting of political signs on public

property. Because the Court's lenient approach towards the restriction of

speech for reasons of aesthetics threatens seriously to undermine the

protections of the First Amendment, I dissent.

50 The Court finds that the City's "interest [in eliminating visual clutter] is

sufficiently substantial to justify the effect of the ordinance on appellees'

expression" and that the effect of the ordinance on speech is "no greater than

necessary to accomplish the City's purpose." Ante, at 805. These are the right

questions to consider when analyzing the constitutionality of the challenged

ordinance, see Metromedia, supra, at 525-527, 101 S.Ct., at 2901-2902

(BRENNAN, J., concurring in judgment); Heffron v. International Society for

Krishna Consciousness, Inc., 452 U.S. 640, 656, 101 S.Ct. 2559, 2568, 69L.Ed.2d 298 (1981) (BRENNAN, J., concurring in part and dissenting in part),

but the answers that the Court provides reflect a startling insensitivity to the

principles embodied in the First Amendment. In my view, the City of Los

Angeles has not shown that its interest in eliminating "visual clutter" justifies its

restriction of appellees' ability to communicate with the local electorate.

51 * The Court recognizes that each medium for communicating ideas and

information presents its own particular problems. Our analysis of the FirstAmendment concerns implicated by a given medium must therefore be

sensitive to these particular problems and characteristics. The posting of signs

is, of course, a time-honored means of communicating a broad range of ideas


19/36

and information, particularly in our cities and towns. At the same time, the

unfettered proliferation of signs on public fixtures may offend the public's

legitimate desire to preserve an orderly and aesthetically pleasing urban

environment. In this case, as in Metromedia, we are called upon to adjudge the

constitutionality under the First Amendment of a local government's response to

this recurring dilemma—namely, the clash between the public's aesthetic

interest in controlling the use of billboards, signs, handbills, and other similar means of communication, and the First Amendment interest of those who wish

to use these media to express their views, or to learn the views of others, on

matters of importance to the community.

52 In deciding this First Amendment question, the critical importance of the

posting of signs as a means of communication must not be overlooked. Use of

this medium of communication is particularly valuable in part because it entails

a relatively small expense in reaching a wide audience, allows flexibility inaccommodating various formats, typographies, and graphics, and conveys its

message in a manner that is easily read and understood by its reader or viewer.

There may be alternative channels of communication, but the prevalence of a

large number of signs in Los Angeles1 is a strong indication that, for many

speakers, those alternatives are far less satisfactory. Cf. Southeastern

Promotions, Ltd. v. Conrad, 420 U.S. 546, 556, 95 S.Ct. 1239, 1245, 43

L.Ed.2d 448 (1975).

53 Nevertheless, the City of Los Angeles asserts that ample alternative avenues of

communication are available. The City notes that, although the posting of signs

on public property is prohibited, the posting of signs on private property and

the distribution of handbills are not. Brief for Appellants 25-26. But there is no

showing that either of these alternatives would serve appellees' needs nearly as

well as would the posting of signs on public property. First, there is no proof

that a sufficient number of private parties would allow the posting of signs on

their property. Indeed, common sense suggests the contrary at least in someinstances. A speaker with a message that is generally unpopular or simply

unpopular among property owners is hardly likely to get his message across if

forced to rely on this medium. It is difficult to believe, for example, that a

group advocating an increase in the rate of a property tax would succeed in

persuading private property owners to accept its signs.

54 Similarly, the adequacy of distributing handbills is dubious, despite certain

advantages of handbills over signs. See Martin v. Struthers, 319 U.S. 141, 145-146, 63 S.Ct. 862, 864-865, 87 L.Ed. 1313 (1943). Particularly when the

message to be carried is best expressed by a few words or a graphic image, a

message on a sign will typically reach far more people than one on a handbill.


20/36

II

The message on a posted sign remains to be seen by passersby as long as it is

posted, while a handbill is typically read by a single reader and discarded.

Thus, not only must handbills be printed in large quantity, but many hours must

be spent distributing them. The average cost of communicating by handbill is

therefore likely to be far higher than the average cost of communicating by

poster. For that reason, signs posted on public property are doubtless "essential

to the poorly financed causes of little people," id., at 146, 63 S.Ct., at 865, andtheir prohibition constitutes a total ban on an important medium of

communication. Cf. Stone, Fora Americana: Speech in Public Places, 1974

S.Ct.Rev. 233, 257. Because the City has completely banned the use of this

particular medium of communication, and because, given the circumstances,

there are no equivalent alternative media that provide an adequate substitute,

the Court must examine with particular care the justifications that the City

proffers for its ban. See Metromedia, supra, 453 U.S., at 525-527, 101 S.Ct., at

2901-2902 (BRENNAN, J., concurring in judgment); Linmark Associates, Inc.v. Willingboro, 431 U.S. 85, 93, 97 S.Ct. 1614, 1618, 52 L.Ed.2d 155 (1977).

55 As the Court acknowledges, ante, at 805, when an ordinance significantly

limits communicative activity, "the delicate and difficult task falls upon the

courts to weigh the circumstances and to appraise the substantiality of the

reasons advanced in support of the regulation." Schneider v. State, 308 U.S.147, 161, 60 S.Ct. 146, 151, 84 L.Ed. 155 (1939). The Court's first task is to

determine whether the ordinance is aimed at suppressing the content of speech,

and, if it is, whether a compelling state interest justifies the suppression.

Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 540, 100

S.Ct. 2326, 2334, 65 L.Ed.2d 319 (1980); Police Department of Chicago v.

Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286, 2292, 33 L.Ed.2d 212 (1972). If the

restriction is content-neutral, the court's task is to determine (1) whether the

governmental objective advanced by the restriction is substantial, and (2)whether the restriction imposed on speech is no greater than is essential to

further that objective. Unless both conditions are met the restriction must be

invalidated. See ante, at 805, 808, 810.2

56 My suggestion in Metromedia was that courts should exercise special care in

addressing these questions when a purely aesthetic objective is asserted to

justify a restriction of speech. Specifically, "before deferring to a city's

judgment, a court must be convinced that the city is seriously andcomprehensively addressing aesthetic concerns with respect to its

environment." 453 U.S., at 531, 101 S.Ct., at 2905. I adhere to that view. Its

correctness—premised largely on my concern that aesthetic interests are easy


21/36

for a city to assert and difficult for a court to evaluate—is, for me, reaffirmed

by this case.

57 The fundamental problem in this kind of case is that a purely aesthetic state

interest offered to justify a restriction on speech—that is, a governmental

objective justified solely in terms like "proscribing intrusive and unpleasant

formats for expression," ante, at 806 creates difficulties for a reviewing court infulfilling its obligation to ensure that government regulation does not trespass

upon protections secured by the First Amendment. The source of those

difficulties is the unavoidable subjectivity of aesthetic judgments—the fact that

"beauty is in the eye of the beholder." As a consequence of this subjectivity,

laws defended on aesthetic grounds raise problems for judicial review that are

not presented by laws defended on more objective grounds—such as national

security, public health, or public safety.3 In practice, therefore, the inherent

subjectivity of aesthetic judgments makes it all too easy for the government tofashion its justification for a law in a manner that impairs the ability of a

reviewing court meaningfully to make the required inquiries.4

58 Initially, a reviewing court faces substantial difficulties determining whether

the actual objective is related to the suppression of speech. The asserted interest

in aesthetics may be only a facade for content-based suppression. Of course, all

would agree that the improvement and preservation of the aesthetic

environment are important governmental functions, and that some restrictionson speech may be necessary to carry out these functions. Metromedia, supra, at

530, 101 S.Ct., at 2904. But a governmental interest in aesthetics cannot be

regarded as sufficiently compelling to justify a restriction of speech based on an

assertion that the content of the speech is, in itself, aesthetically displeasing.

Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971).

Because aesthetic judgments are so subjective, however, it is too easy for

government to enact restrictions on speech for just such illegitimate reasons and

to evade effective judicial review by asserting that the restriction is aimed atsome displeasing aspect of the speech that is not solely communicative—for

example, its sound, its appearance, or its location. An objective standard for

evaluating claimed aesthetic judgments is therefore essential; for without one,

courts have no reliable means of assessing the genuineness of such claims.

59 For example, in evaluating the ordinance before us in this case, the City might

be pursuing either of two objectives, motivated by two very different

judgments. One objective might be the elimination of "visual clutter,"attributable in whole or in part to signs posted on public property. The aesthetic

judgment underlying this objective would be that the clutter created by these

signs offends the community's desire for an orderly, visually pleasing


22/36

B

(1)

(2)

environment. A second objective might simply be the elimination of the

messages typically carried by the signs.5 In that case, the aesthetic judgment

would be that the signs' messages are themselves displeasing. The first

objective is lawful, of course, but the second is not. Yet the City might easily

mask the second objective by asserting the first and declaring that signs

constitute visual clutter. In short, we must avoid unquestioned acceptance of the

City's bare declaration of an aesthetic objective lest we fail in our duty to prevent unlawful trespasses upon First Amendment protections.

60 A total ban on an important medium of communication may be upheld only if

the government proves that the ban (1) furthers a substantial government

objective, and (2) constitutes the least speech-restrictive means of achieving

that objective. Schad v. Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68L.Ed.2d 671 (1981). Here too, however, meaningful judicial application of

these standards is seriously frustrated.

61

62 No one doubts the importance of a general governmental interest in aesthetics,

but in order to justify a restriction of speech, the particular objective behind the

restriction must be substantial. E.g. United States v. Grace, 461 U.S. 171, 177,103 S.Ct. 1702, 1709, 75 L.Ed.2d 736 (1983); Perry Education Assn. v. Perry

Local Educators' Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794

(1983); United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20

L.Ed.2d 672 (1968). Therefore, in order to uphold a restriction of speech

imposed to further an aesthetic objective, a court must ascertain the

substantiality of the specific objective pursued. Although courts ordinarily

defer to the government's assertion that its objective is substantial, that

assertion is not immune from critical examination. See, e.g., Schad v. MountEphraim, supra, 452 U.S., at 72-73, 101 S.Ct., at 2184-2185. This is

particularly true when aesthetic objectives underlie the restrictions. But in such

cases independent judicial assessment of the substantiality of the government's

interest is difficult. Because aesthetic judgments are entirely subjective, the

government may too easily overstate the substantiality of its goals.

Accordingly, unless courts carefully scrutinize aesthetics-based restrictions of

speech, they risk standing idly by while important media of communication are

foreclosed for the sake of insubstantial governmental objectives.

63

64 Similarl when a total ban is ustified solel in terms of aesthetics the means


23/36

, ,

inquiry necessary to evaluate the constitutionality of the ban may be impeded

by deliberate or unintended government manipulation. Governmental objectives

that are purely aesthetic can usually be expressed in a virtually limitless variety

of ways. Consequently, objectives can be tailored to fit whatever program the

government devises to promote its general aesthetic interests. Once the

government has identified a substantial aesthetic objective and has selected a

preferred means of achieving its objective, it will be possible for thegovernment to correct any mismatch between means and ends by redefining the

ends to conform with the means.

65 In this case, for example, any of several objectives might be the City's actual

substantial goal in banning temporary signs: (1) the elimination of all signs

throughout the City, (2) the elimination of all signs in certain parts of the City,

or (3) a reduction of the density of signs. Although a total ban on the posting of

signs on public property would be the least restrictive means of achieving only

the first objective, it would be a very effective means of achieving the other

two as well. It is quite possible, therefore, that the City might select such a ban

as the means by which to further its general interest in solving its sign problem,

without explicitly considering which of the three specific objectives is really

substantial. Then, having selected the total ban as its preferred means, the City

would be strongly inclined to characterize the first objective as the substantial

one. This might be done purposefully in order to conform the ban to the least-

restrictive-means requirement, or it might be done inadvertently as a naturalconcomitant of considering means and ends together. But regardless of why it

is done, a reviewing court will be confronted with a statement of substantiality

the subjectivity of which makes it impossible to question on its face.

66 This possibility of interdependence between means and ends in the

development of policies to promote aesthetics poses a major obstacle to judicial

review of the availability of alternative means that are less restrictive of speech.

Indeed, when a court reviews a restriction of speech imposed in order to

promote an aesthetic objective, there is a significant possibility that the court

will be able to do little more than pay lipservice to the First Amendment inquiry

into the availability of less restrictive alternatives. The means may fit the ends

only because the ends were defined with the means in mind. In this case, for

example, the City has expressed an aesthetic judgment that signs on public

property constitute visual clutter throughout the City and that its objective is to

eliminate visual clutter. We are then asked to determine whether that objective

could have been achieved with less restriction of speech. But to ask thequestion is to highlight the circularity of the inquiry. Since the goal, at least as

currently expressed, is essentially to eliminate all signs, the only available

means of achieving that goal is to eliminate all signs.


24/36

C

III

67 The ease with which means can be equated with aesthetic ends only confirms

the importance of close judicial scrutiny of the substantiality of such ends. See

supra, at 824-825. In this case, for example, it is essential that the Court assess

the City's ban on signs by evaluating whether the City has a substantial interest

in eliminating the visual clutter caused by all posted signs throughout the City

—as distinguished from an interest in banning signs in some areas or in

preventing densely packed signs. If, in fact, either of the latter two objectivesconstitute the substantial interest underlying this ordinance, they could be

achieved by means far less restrictive of speech than a total ban on signs, and

the ban, therefore, would be invalid.

68 Regrettably, the Court's analysis is seriously inadequate. Because the Court has

failed to develop a reliable means of gauging the nature or depth of the City'scommitment to pursuing the goal of eradicating "visual clutter," it simply

approves the ordinance with only the most cursory degree of judicial oversight.

Without stopping to consider carefully whether this supposed commitment is

genuine or substantial, the Court essentially defers to the City's aesthetic

judgment and in so doing precludes serious assessment of the availability of

alternative means.

69 The Court begins by simply affirming that "[t]he problem addressed by thisordinance—the visual assault on the citizens of Los Angeles presented by an

accumulation of signs posted on public property—constitutes a significant

substantive end within the City's power to prohibit." Ante, at 807. Then,

addressing the availability of less restrictive alternatives, the Court can do little

more than state the unsurprising conclusion that "[b]y banning these signs, the

City did no more than eliminate the exact source of the evil it sought to

remedy." Ante, at 808. Finally, as if to explain the ease with which it reaches its

conclusion, the Court notes that "[w]ith respect to signs posted by appellees . . .it is the tangible medium of expressing the message that has adverse impact on

the appearance of the landscape." Ante, at 810. But, as I have demonstrated, it

is precisely the ability of the State to make this judgment that should lead us to

approach these cases with more caution.

70 The fact that there are difficulties inherent in judicial review of aesthetics-basedrestrictions of speech does not imply that government may not engage in such

activities. As I have said, improvement and preservation of the aesthetic

environment are often legitimate and important governmental functions. But


25/36

because the implementation of these functions creates special dangers to our

First Amendment freedoms, there is a need for more stringent judicial scrutiny

than the Court seems willing to exercise.

71 In cases like this, where a total ban is imposed on a particularly valuable

method of communication, a court should require the government to provide

tangible proof of the legitimacy and substantiality of its aesthetic objective.Justifications for such restrictions articulated by the government should be

critically examined to determine whether the government has committed itself

to addressing the identified aesthetic problem.

72 In my view, such statements of aesthetic objectives should be accepted as

substantial and unrelated to the suppression of speech only if the government

demonstrates that it is pursuing an identified objective seriously and

comprehensively and in ways that are unrelated to the restriction of speech.

Metromedia, 453 U.S., at 531, 101 S.Ct., at 2904 (BRENNAN, J., concurring in

judgment). Without such a demonstration, I would invalidate the restriction as

violative of the First Amendment. By requiring this type of showing, courts can

ensure that governmental regulation of the aesthetic environment remains

within the constraints established by the First Amendment. First, we would

have a reasonably reliable indication that it is not the content or communicative

aspect of speech that the government finds unaesthetic. Second, when a

restriction of speech is part of a comprehensive and seriously pursued programto promote an aesthetic objective, we have a more reliable indication of the

government's own assessment of the substantiality of its objective. And finally,

when an aesthetic objective is pursued on more than one front, we have a better

basis upon which to ascertain its precise nature and thereby determine whether

the means selected are the least restrictive ones for achieving the objective.6

73 This does not mean that a government must address all aesthetic problems at

one time or that a government should hesitate to pursue aesthetic objectives.

What it does mean, however, is that when such an objective is pursued, it may

not be pursued solely at the expense of First Amendment freedoms, nor may it

be pursued by arbitrarily discriminating against a form of speech that has the

same aesthetic characteristics as other forms of speech that are also present in

the community. See Metromedia, supra, at 531-534, 101 S.Ct., at 2904-2906

(BRENNAN, J., concurring in judgment).

74 Accordingly, in order for Los Angeles to succeed in defending its total ban on

the posting of signs, the City would have to demonstrate that it is pursuing its

goal of eliminating visual clutter in a serious and comprehensive manner. Most

importantly, the City would have to show that it is pursuing its goal through


26/36

programs other than its ban on signs, that at least some of those programs

address the visual clutter problem through means that do not entail the

restriction of speech, and that the programs parallel the ban in their stringency,

geographical scope, and aesthetic focus. In this case, however, as the Court of

Appeals found, there is no indication that the City has addressed its visual

clutter problem in any way other than by prohibiting the posting of signs—

throughout the City and without regard to the density of their presence. 682F.2d 847, 852 (CA9 1982). Therefore, I would hold that the prohibition violates

appellees' First Amendment rights.

75 In light of the extreme stringency of Los Angeles' ban barring all signs from

being posted—and its wide geographical scope—covering the entire City—it

might be difficult for Los Angeles to make the type of showing I have

suggested. Cf. Metromedia, supra 453 U.S., at 533-534, 101 S.Ct., at 2905-

2906. A more limited approach to the visual clutter problem, however, mightwell pass constitutional muster. I have no doubt that signs posted on public

property in certain areas—including, perhaps, parts of Los Angeles—could

contribute to the type of eyesore that a city would genuinely have a substantial

interest in eliminating. These areas might include parts of the City that are

particularly pristine, reserved for certain uses, designated to reflect certain

themes, or so blighted that broad-gauged renovation is necessary. Presumably,

in these types of areas, the City would also regulate the aesthetic environment

in ways other than the banning of temporary signs. The City might zone suchareas for a particular type of development or lack of development; it might

actively create a particular type of environment; it might be especially vigilant

in keeping the area clean; it might regulate the size and location of permanent

signs; or it might reserve particular locations, such as kiosks, for the posting of

temporary signs. Similarly, Los Angeles might be able to attack its visual

clutter problem in more areas of the City by reducing the stringency of the ban,

perhaps by regulating the density of temporary signs, and coupling that

approach with additional measures designed to reduce other forms of visualclutter. There are a variety of ways that the aesthetic environment can be

regulated, some restrictive of speech and others not, but it is only when

aesthetic regulation is addressed in a comprehensive and focused manner that

we can ensure that the goals pursued are substantial and that the manner in

which they are pursued is no more restrictive of speech than is necessary.

76 In the absence of such a showing in this case, I believe that Los Angeles' total

ban sweeps so broadly and trenches so completely on appellees' use of animportant medium of political expression that it must be struck down as

violative of the First Amendment.7


27/36

The ordinance reads as follows:

"Sec. 28.04. Hand-bills, signs-public places and objects:

"(a) No person shall paint, mark or write on, or post or otherwise affix, any

hand-bill or sign to or upon any sidewalk, crosswalk, curb, curbstone, street

lamp post, hydrant, tree, shrub, tree stake or guard, railroad trestle, electric light

or power or telephone or telegraph or trolley wire pole, or wire appurtenance

thereof or upon any fixture of the fire alarm or police telegraph system or upon

any lighting system, public bridge, drinking fountain, life buoy, life preserver,

life boat or other life saving equipment, street sign or traffic sign.

"(b) Nothing in this section contained shall apply to the installation of terrazzo

sidewalks or sidewalks of similar construction, sidewalks permanently colored

by an admixture in the material of which the same are constructed, and for

which the Board of Public Works has granted a written permit.

"(c) Any hand-bill or sign found posted, or otherwise affixed upon any public

property contrary to the provisions of this section may be removed by the

Police Department or the Department of Public Works. The person responsiblefor any such illegal posting shall be liable for the cost incurred in the removal

thereof and the Department of Public Works is authorized to effect the

collection of said cost.

"(d) Nothing in this section shall apply to the installation of a metal plaque or

plate or individual letters or figures in a sidewalk commemorating an historical,

cultural, or artistic event, location or personality for which the Board of Public

Works, with the approval of the Council, has granted a written permit.

"(e) Nothing in this section shall apply to the painting of house numbers upon

curbs done under permits issued by the Board of Public Works under and in

accordance with the provisions of Section 62.96 of this Code."

The First Amendment provides: "Congress shall make no law . . . abridging the

freedom of speech, or of the press. . . ." Under the Fourteenth Amendment, city

ordinances are within the scope of this limitation on governmental authority.

Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938).

The first 10 signs identified on the March 9 weekly report were:

77 I therefore dissent.

1

2

3


28/36

"Leonard's Nite Club 11

Alamar Travel Bureau Inc. 5

The Item—Madam Wongs 13

Salon Broadway 14

Vernon Auditorium—Apache Jupiter 20

Raul Palomo, Jr. 12

Roland Vincent 48

The American Club 2

Rose Royce 11

Total Experience 13"

App. 73.

For convenience we shall refer to these parties as simply as the "City."

App. to Juris. Statement 17a.

Id., at 18a.

"The Los Angeles Planning and Zoning Code was enacted in part to encourage

the most appropriate use of land; to conserve and stabilize the value of

property; to provide adequate open spaces for light and air; to prevent and fight

fire; to lessen congestion on streets; to facilitate adequate provisions for

community utilities and facilities and to promote health, safety, and the general

welfare, all in accordance with a comprehensive plan." Finding 11, App. to

Juris. Statement 17a.

App. to Juris. Statement 18a. The District Court's Finding 14 reads, in full, as

follows:

"The large number of signs illegally posted on the items of public and utility

property enumerated in Section 28.04 constitute a clutter and visual blight. The

posting of signs on utility pole cross wires for which the plaintiffs [seek]authorization would add somewhat to the blight and inevitably would

encourage greatly increased posting in other unauthorized and unsightly places

by people not aware of the distinction the plaintiffs seek to make."

4

5

6

7


29/36

Finding 17, App. to Juris. Statement 18a.

Finding 18, App. to Juris. Statement 18a.

Conclusion of Law No. 5, App. to Juris. Statement 19a.

Nevertheless, the court acknowledged that should subsequent experience with a

less comprehensive prohibition prove ineffective in achieving the City's goals,

it might reenact the very ordinance the court had just struck down. As authority

for this procedure, the court cited Ratner, The Function of the Due Process

Clause, 116 U.Pa.L.Rev. 1048, 1110-1111 (1968).

The question before the Court was whether Stromberg could constitutionally be

convicted for displaying a red flag as a symbol of opposition to organized

government. Stromberg was a supervisor at a summer camp for children. The

camp's curriculum stressed class consciousness and the solidarity of workers.Each morning at the camp a red flag was raised and the children recited a

pledge of allegiance to the "workers' flag." The statute under which Stromberg

was convicted prohibited peaceful display of a symbol of opposition to

organized government. The Court wrote:

"The maintenance of the opportunity for free political discussion to the end that

government may be responsive to the will of the people and that changes may

be obtained by lawful means, an opportunity essential to the security of theRepublic, is a fundamental principle of our constitutional system. A statute

which upon its face, and as authoritatively construed, is so vague and indefinite

as to permit the punishment of the fair use of this opportunity is repugnant to

the guaranty of liberty contained in the Fourteenth Amendment. The . . . statute

being invalid upon its face, the conviction of the appellant . . . must be set

aside." 283 U.S., at 369-370, 51 S.Ct., at 536.

Lovell was convicted of distributing religious pamphlets without a license. A

local ordinance required a license to distribute any literature, and gave the chief

of police the power to deny a license in order to abate anything he considered to

be a "nuisance." The Court wrote:

"We think that the ordinance is invalid on its face. Whatever the motive which

induced its adoption, its character is such that it strikes at the very foundation

of the freedom of the press by subjecting it to license and censorship. The

struggle for the freedom of the press was primarily directed against the power

of the licensor. It was against that power that John Milton directed his assault by his 'Appeal for the Liberty of Unlicensed Printing.' And the liberty of the

press became initially a right to publish 'without a license what formerly could

be published only with one.' While this freedom from previous restraint upon

8

9

10

11

12

13


30/36

publication cannot be regarded as exhausting the guaranty of liberty, the

prevention of that restraint was a leading purpose in the adoption of the

constitutional provision." 303 U.S., at 451-452, 58 S.Ct., at 669 (footnote

omitted).

In Stromberg, the only justification for the statute was the suppression of ideas.

In Lovell, since no attempt was made to tailor the licensing requirement to asubstantive evil unrelated to the suppression of ideas, the statute created an

unacceptable risk that it would be used to suppress. Under such statutes, any

enforcement carries with it the risk that the enforcement is being used merely to

suppress speech, since the statute is not aimed at a substantive evil within the

power of the government to prohibit.

Subsequent cases have continued to employ facial invalidation where it was

found that every application of the statute created an impermissible risk of

suppression of ideas. See Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92

L.Ed. 1574 (1948) (ordinance prohibited use of loudspeaker in public places

without permission of the chief of police whose discretion was unlimited);

Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940)

(ordinance required license to distribute religious literature without standards

for the exercising of licensing discretion); Schneider v. State, 308 U.S. 147, 60

S.Ct. 146, 84 L.Ed. 155 (1939) (ordinances prohibited distributing leaflets

without a license and provided no standards for issuance of licenses); Hague v.

CIO, 307 U.S. 496, 516, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939) (plurality

opinion) (statute permitted city to deny permit for a public demonstration

subject only to the uncontrolled discretion of the director of public safety).

"It is not merely the sporadic abuse of power by the censor but the pervasive

Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984)

Documents

Transcript of Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984)